Verkade, a Dutch biscuits and sweets producer launched, a TV-commercial parodying the well-known Werther’s Original (=Storck) campaign. The Verkade commercial starts just the way Werther’s spot does: grandpa sitting in his chair, reminiscing the days his grandpa gave him biscuits as he was a child. The second scene of the commercial, however, differs from the Werther’s commercial. Instead of giving biscuits to his own grandchild, the grandpa eats the biscuits himself, refusing to give any to his grandson. Hereafter, the grandson hits his grandpa on the head with a frying pan and runs of with the last biscuits.

Werther’s started a summary proceeding and won. The Court ruled that the Verkade commercial was a “tortious act” and therefore unlawful. Since the contrast between the corny character of the Werther’s personages and the aggressive Verkade personages was too big, the Court ruled that Verkade has crossed the line. Werther’s spot was ridiculed in such a way that the corny character of it could be experienced by the target group as negative.

Why this matters:

Dutch law has no sub-categories of tort such as the UK’s “passing off”. Instead there is a very broadly drawn and interpreted category of civil wrong called “tortious act”. This ruling clarifies the scope in which parody is allowed in commercials. Although it cannot be concluded from this ruling that parody is not allowed at all, the ruling does restrict the freedom of advertising agencies to parody other commercials without committing a “tortious act”.

There are some basic guidelines that can be concluded from this ruling:

only copy the necessary elementsthe parody may not target the appeal of the parody’s commercialthe parody on commercials for competing products will be regarded unlawful more likelyThe more well known the commercial is, the more likely a parody will be regarded unlawfulOC contributor: Bob Rietjens (Ploum Lodder Princen, Rotterdam), b.rietjens@plp.nl